Blumenthal: Rocky road ahead for town
December 2, 2014
From my many years as a practicing lawyer, albeit a mere Hollywood entertainment attorney, I can attest to the fact that it's practically impossible to predict accurately the outcome of a lawsuit whether heard by judge or jury. That's why, in order to maintain some degree of control over the outcome in most civil litigation matters, the parties often choose to settle their conflicts and differences outside the court room.
Clearly there is strong motivation to do so when monetary damages are at the heart of the dispute, but that does not appear to be the case in Goodwin vs. the Town of Snowmass Village and the Town Council — and that my friends unfortunately portends a bumpy road ahead for all of us since the facts as we know them at this point in time don't appear to jump off the page in the town or council's favor.
Former Town Council members Fred Kucker and Markey Butler (recently elected as mayor) should have had the foresight not to conduct any ex parte communications concerning Base Village with a representative of Aspen Skiing Co. while the application for an extension of Related's vested development rights was wending its way through the town's land-use review process. Their defense consists of their claim that Skico was not the applicant. Dr. Goodwin's attorney will likely make short shrift of that argument since it should be quite easy for him to show that Skico and Related were tied at the hip on this extension and the completion of Base Village.
This time around, Related is fronting the approval process for Skico's Limelight Snowmass hotel and the commercial and free-market residential building next door to the Limelight, as well as attempting to convert what was originally approved as the community benefit aqua center into what now is characterized primarily as a private amenity for the Limelight and its guests. Skico and Related are in a contractual agency relationship, with Related fronting the approval process on behalf of Skico. Not a tough fact to prove based on all the available evidence and clearly the continued denial of such an agency relationship is likely a very weak argument for the town and council to rely on in their defense of this lawsuit.
In addition, the lawsuit alleges the current corporate iteration of Related did not succeed to its predecessors vested development rights due to the intervening bankruptcy and foreclosure proceedings as well as the town's alleged failure to confirm in writing consent to the assignment of such rights. Again this should not be very difficult to prove if the allegations are correct.
I'm also advised that legal discovery proceedings will show that at least one of the council members involved in the ex parte communication was warned by the town attorney that a line of communication with a representative of Skico concerning Related's application was a line that should not have been crossed.
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On top of all that, the town recently learned that due to the nature of the claims in this lawsuit its municipal insurer has declined to cover any liability arising from this action and will not provide the town's legal defense. Thus, the town is on its own dime in funding and paying for outside counsel to represent the town in its defense of this lawsuit, and if the court so finds to cover any costs and expenses that Dr. Goodwin is awarded such as reimbursement of his attorney's fees and other legal costs as well as the town's costs of its own defense and liability. Depending on how long this lawsuit continues and how complex the discovery and legal proceedings are, the costs to the town and the taxpayers will likely total a small fortune and all due to avoidable errors in judgment as well as a failure to dot all the "i's" and cross all the "t's".
Although likely an expensive learning lesson, on the positive side the new town manager is taking steps to ensure that our elected representatives don't make similar mistakes in judgment in the future and hopefully he and the town attorney will keep closer watch on ensuring that all procedural details are followed and fulfilled.
In spite of the negative facts outlined above and my inability to predict the outcome of the lawsuit and its impact, if any, on the future of Base Village, I shall remain optimistic while the town moves forward with its review of Related's current application.
Although Dwayne Romero, president of Related Colorado, apparently in the heat of anger stated that Related would not proceed with the review process unanimously approved by the Town Council, I would hope his anger has subsided and that rational leadership at Related and the town will work together diligently to find procedurally acceptable ways to simplify and accelerate the review process in order that it can still be completed on or near the previously agreed May 31 deadline thus allowing Base Village construction to recommence next summer.
Keep your fingers crossed that all goes well.
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